Wednesday, June 8, 2011

How to Lose an Appeal - Indiana Appellate Procedure

As part of my regular routine I read all of the Domestic Relations and child custody cases handed down by the Indiana Court of Appeals and the Indiana Supreme Court. I consistently come across decisions like the one I am examining today. This time it is a pro se litigant who's appeal was doomed from the outset by failure to comply with one of the simplest rules. I have previously written about similar appeals in Pro-se Litigant Child Custody Appeals where I examined appeals by pro se litigants and also some disastrous appeals by attorneys.

In this appeal, Joseph N Wright represented himself arguing the the trial court had abused its discretion by not modifying his child support payment obligation. Wright had been ordered to pay $177.06 per week based upon an imputed income of $50,000.

Modification of a child support order is governed by Indiana Code section 31-16-8-1 (2010), which provides that child support orders generally may only be modified upon a showing of (1) changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) that a party has been ordered to pay an amount in child support differing by more than twenty percent from the amount which would have been ordered pursuant to the child support guidelines.

The trial court found that Wright had not proved his case. The party seeking to modify a child support order bears the burden of establishing that the requirements of section 31-16-8-1 have been met. See Saalfrank v. Saalfrank, 899 N.E.2d 671, 675 (Ind. Ct. App. 2008).

Ultimately the panel of the appeals court found that Wright had not met his burden to show that the trial court had abused its discretion. The panel noted that the trial court observed his “nice jewelry” and “nice clothes,” and stated, “I do not see any change in your income or circumstances in this case.”

I disagree with Magistrate Nanette K. Raduenz and Judge Elizabeth F. Tavitas that “nice jewelry” and “nice clothes” should have an impact on establishing a child support payment amount or the modification of a child support order. I was recently given a suit that belonged to the late Henry Karlson, famed Indiana University law professor and civil rights attorney. It clearly falls into the category of "nice clothes" yet in no way does it change my paltry level of income.

Setting the substance of the case aside I move to a fundamental error made by Wright and quite a few others. The Court of Appeals noted as follows:
"As a preliminary matter, Wright has failed to supply this court with a copy of the transcript from the hearing or with citations to relevant parts of the record relied upon as required by Indiana Appellate Rule 46(A)(8)(a). Without a complete record and corresponding citations thereto, Wright’s claims are waived."

I do not know where Wright obtained his information on how to write and appeal but he missed one of the most basic rules which does not apply under only a very limited set of circumstances. The panel needs to see the trial court record!!! For some reason they just don't take a litigant's word that what is claimed was actually done or said in court.

Having a record to examine is essential to deciding an appeal. Following the rules is also essential. Appellate work is laborious, requires strict adherence to the rules and must be done using a mindset prepared to make logical argument.

The higher courts have consistently held that pro se litigants will be held to the same standard as trained attorneys. Appeals are something that should not be done alone. Even some attorneys use an assistant when doing appeals.

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©2008, 2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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